OAG Vs. The Government

With the Anti-Corruption Corruption (ACC) investigations into the Gyalpoizhing land case now with the Office of the Attorney General (OAG), questions are being raised on whether it can, as the advisor and legal representative of the government, also prosecute the government.

“There is and will be conflict of interest,” a legal analyst said, adding the Attorney General was appointed by the King on the recommendation of the Prime Minister. “How can he prosecute the government, when he is the legal advisor and legal representative of it?”

The Constitution states the Attorney General, as the chief legal officer of the government, will carry out the responsibilities within the domain and authority of the government.

Anti-Corruption Commission officials said it could conduct its own prosecution of a person charged with an offence according to the ACC Act of 2011. According to the Act, the commission can take over the prosecution process from the Attorney General’s office, if it delayed the case without valid reasons, and manipulated or hampered the case.

The case, some in the judiciary said, was going to be as challenging for them, in terms of interpretation of relevant laws that were ambiguous.

The amended ACC Act of 2011 could not apply laws retrospectively, one court official said. “The new Act is not clear on retrospective application of law,” he said, adding that, instead, they turned it around and had it applied prospectively, which means it is applicable from the day the ACC bill becomes an Act.

“If land beneficiaries are to be prosecuted, on what basis and interpretation of law will the Attorney General go about it?” a legal official said. “They can’t relate, for instance, the Gyalpoizhing case because the 2011 ACC Act does not say that they can prosecute retrospectively.”

The ACC Act also does not say that it cannot prosecute retrospectively at the same time.

The fourth Druk Gyalpo had commanded that land allotment in Mongar township be done as early as possible by the committee comprising 12 public officials, with the Dzongda as the chairman of the municipal committee.

“Therefore, the present government has nothing to do with the Gyalpoizhing land case,” he said. “The government should have resolved the issue through policy matters, like reinstituting land back to government because the government of the day has the executive power to take a political decision through constitutional adjustment approach.”

Instead the Prime Minister in August 2011, in the interest of promoting transparency, requested the commission to conduct a thorough investigation.

In keeping with the ACC Act 2011, the commission, last week, forwarded its findings on Gyalpoizhing land allotment case to the Attorney General’s office for prosecution.

A lawyer said that if the case goes to court everyone from beneficiaries to the members of the Gyalpoizhing land allotment committee would have to be prosecuted. “It’ll further complicate the case,” he said.

During its investigation, Anti-Corruption officials had found that the National Assembly Speaker Jigme Tshultim, who was then the Mongar Dzongda and the ex-officio chairman of the Dzongkhag Land Allotment Committee, had allotted land to some individuals, who were themselves unaware of how they got their lag-thrams (land ownership certificate). The next Dzongda also allotted land to some religious institutions.

The Attorney General, Phuntsho Wangdi, said that his office was in the process of reviewing the ACC investigations, and was therefore not in a position to comment.